I-9 E-Verify Immigration Compliance

By: Bruce Buchanan, Sebelist Buchanan Law As an immigration attorney and former NLRB attorney, I am always fascinated when immigration law and immigration law overlap. That was the case in Cinelease, Inc., JD(SF)-33-77 (July 2017), where an Administrative Law Judge for the National Labor Relations Board (NLRB) found an employer, Cinelease, to have violated Sections 8 (a)(1) and (3) of the National Labor Relations Act (NLRA) by actions related to reverifying employees’ work authorization documents.

The issue of reverification arose after the Teamsters Union filed a petition with the NLRB seeking an election of the company’s warehouse employees. Within two weeks, Cinelease’s operations manager had a meeting with an employee and told how him that his work permit had expired. The employer said they learned of this information from another worker.

Because of this information, Cinelease contacted their legal counsel, who advised to conduct an internal I-9 audit to verify all employees’ documentation. At that time, Cinelease did not have a procedure in place to conduct such an audit and had not been reverifying immigration documentation. Their immigration counsel gave Cinelease instructions from on how to conduct the audit although Cinelease’s managers and legal counsel could not agree on whether they were told to not re-verify green cards.

Pursuant to the instructions, Cinelease’s HR manager reviewed all the employees’ I-9 forms and made a list of those employees with expired documentation. The list did not differentiate between expired green cards and expired work permits. (An employee’s green card or permanent residence does not end at the end of the employee’s green card and it is unlawful, under the Immigration & Nationality Act (INA), for an employer to reverify an employee’s green card status.)

The company-wide audit showed 17 employees out of 165 employees had “expired work papers; seven of the 17 employees were warehouse employees. Next, Cinelease began calling in the 17 employees one by one and informing them they had expired work papers and to provide up to date documentation. Some of the employees had not provided updated work permits to Cinelease on a regular basis and only when Cinelease haphazardly requested such. One employee, Hugo Martinez, was unable to provide a current work permit; thus, Cinelease suspended him until December 18, 2016, one day after the NLRB conducted union election.

Following reverifications of the employees’ documentation, attendance at union meetings declined. The union election ended at a tie. Additionally, the day after the election, suspended employee Martinez was told by Cinelease management that he could take more time to get new documentation.

In concluding the requests to reverify employees’ employment authorization documents were a violation of Section 8 (a)(1) of the NLRA, the ALJ stated that normally this would not be a violation of the NLRA; rather, it is required under immigration law for work permits. However, the NLRB has previously found this action is unlawful if conducted in retaliation for union activity.

Thus, the question is whether Cinelease’s actions were retaliatory. As the ALJ stated: “It is perfectly clear the documentation was not requested as part of the Respondent’s ordinary practice of rechecking work authorizations. Rather, such large-scale rechecks of work authorizations was unprecedented.

Cinelease argued it was just attempting to comply with immigration law. However, Cinelease also rechecked permanent residents, which under immigration law is prohibited. Even for permanent residents, Cinelease requested reverification of their cards, including those whose green cards had not expired. Ultimately, the ALJ found the reverifications were retaliatory and motivated by anger at the union campaign and Martinez for his union support. Thus, they violated the NLRA.

The ALJ also found the suspension of Martinez was unlawful. This is interesting in that under immigration law, Cinelease took the correct action when it discovered his unauthorized status. But it did it for retaliatory reasons; thus, the ALJ found a violation. For a remedy, Martinez must provide proof of work authorization before Cinelease can put him back on the payroll.

It will be interesting to see if Cinelease appeals the ALJ’s decision. I will keep you informed.